The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism

Before I went to law school (in 1988), I was an engineering student with little interest in law. I decided to go to law school for the prospects of making more money than an engineer, and because I liked to argue. People would say, Hey, Kinsella, you like to argue politics–you should be a lawyer. Doesn’t make much sense, I know, but I wasn’t ready to take a job designing air flow sensors for F-16 fighter planes for General Dynamics (my first offer as a senior majoring in electrical engineering). I knew so little about the practice of law and law school that I thought I would not able to go since I didn’t have a “pre-law” degree, whatever that was (I am still not sure what a pre-law degree is). But I ended up going–to Louisiana State University’s law school–and from the beginning I was fascinated by law and legal theory and history.

In retrospect, my interest was no doubt fueled by Louisiana’s mixed legal system–as a hybrid of Roman, French, and Spanish law, on the one hand, and American common law, on the other, it probably has the most interesting and richest legal history of any other American State. From my first semester I was immersed in the history of Roman law and the later civilian codifications. Back then, I was still somewhat under the sway of AynRand’s unique emphasis on “human reason” and even rationalism. So when I first started learning about the civil law, my first reaction was Wow! This is very libertarian!

Until then I only knew about the common law, and only a little at that. It took me a while to sort it all out. You see, often the modern common law is contrasted with European continental law, the so-called civil law. Most people believe the civil law is said to have arisen from the French Napoleonic Code which itself is based on Roman law. So you have the idea that we have English common law, or civil law, the modern form of Roman law.

Bear with me; I’m getting to a point or three. It turns out that the Roman law was very decentralized, similar in many ways to the English common law. It was codified and preserved in Justinian’s Code. In the 17th and 18th centuries, during the Enlightenment, the Roman law as it then existed in Europe, plus additional practices and developments, began to be codified into modern “codes”–very systematic and elegant restatements of existing (largely Roman) legal principles. (Justinian’s Code was not a modern code in this sense, but more of a summary of existing legal precedents and rules.) The most famous modern civil code is the 1804 French Code Napoléon–which strongly influenced Louisiana’s Civil Code of 1808 (as did Spanish law).

As noted, at first glance one might think of the two traditions as being English common law vs. Roman law/civil law. But as I discuss in my 1995 Journal of Libertarian Studies article Legislation and the Discovery of Law in a Free Society (summary version: Legislation and Law in a Free Society), the defining characteristic of the civil code-based legal systems is legal positivism: the idea that legislation, and thus the legislature and the state, is the supreme source of law. The modern civil codes are not merely scholarly, elegant restatements of Roman law; they are legislated. The civilians are explicit about this being the defining characteristic of the civil law.

So the real distinction is between decentralized legal systems–Roman law and the original English common law–and centralized legal systems like the modern civil law. In fact, even modern common law-based systems are being gradually overrun by a flood of legislated statutes, so that they become to resemble civil law more and more, though without the elegance (in America, for example, the Constitution is in a sense a code, and a fairly abstract, general and elegant one at that, compared to other legislation; the Uniform Commercial Code is well done and systematic, if not as elegant as a civil code, but most such legislation is narrow, technical, specific, ad hoc, artificial, and incoherent). The civil codes are works of art compared to modern statutes of common law systems. At least civil codes largely embody the legal rules developed in the decentralized ancient Roman law, even if they also presuppose legislative supremacy and legal positivism. Common law statutes are ad hoc and have excessive detail in part to overcome the common law judges’ hostility to legislative encroachment on their glorious common law. Civil law is also superior since Roman law principles are often more coherent and streamlined in comparison to the clunkier, feudalism-based concepts of the common law (see n. 130 and accompanying text of Legislation and the Discovery of Law in a Free Society; other comparisons in terminology and legal concepts may be found in my Civil Law to Common Law Dictionary).

But at first I didn’t get this. I saw the explicit paeans to “reason” given by the modern codifiers, and the language of natural rights and the Enlightenment. At first I thought–hey, these civil codes are more libertarian, since it’s an explicit attempt of the human mind to set down, in coherent, codified, written form, a code of law and justice. I discussed this with one of my professors–John Devlin, a wonderful professor who, though somewhat of a liberal had Hayek’s Law, Legislation and Liberty on his bookshelf in his office–who was from a common law state (New York) and who suggested I read Oliver Wendell Holmes’s The Common Law, and other works, which I did. This left me thoroughly confused for a while, since aspects of the common law also seemed to be superior to the civil law’s legislated codification approach. It was not until later, after I had more distance from Rand and more exposure to libertarian theory, Austrian economics, and other writings such as Bruno Leoni’sFreedom and the Law and Giovanni Sartori’sLiberty and Law, that I developed my current view–as expressed in my 1995 JLS article noted above. Which is that the original Roman law and English common law, both decentralized systems, are vastly superior to today’s legislation based, positivistic, codified legal systems–and that as between Roman and common law, the Roman law is more fascinating to me and seems superior in many respects.

And over the years I keep noticing cases of this. To which I now turn. The first example is Jesús Huerta de Soto’s fantastic book Money, Bank Credit, and Economic Cycles, which draws on Roman legal concepts (such as irregular deposit) to explain and clarify the issues surrounding fractional-reserve banking–narrowing the wiggle room of ambiguity that FRB proponents operate within.

And I am starting to think the Roman law had not only a more elegant and conceptually coherent and streamlined legal framework, but a better view of property rights and even some economic fundamentals than the common law. My entire view of property rights is heavily influenced by the idea that property simply means ownership, and this means the legal right to control a scarce resource. This sounds simple, but once you view it this way, it makes it easier to see various issues more clearly–from contract theory to intellectual property, for example. This conception of the nature of rights complements naturally the title-transfer theory of contract of Evers and Rothbard. As for IP, once you realize property rights are simply the right to control some scarce resource, it is easier to see the role of property rights being to permit conflict to be avoided in the productive use of such resources, and it is also easy to see why the first user of a resource has a better claim to it than others–the Lockean homesteading principle. It is also easier to see why one need not assume the ownership of labor for Lockean homesteading to be valid, and why the expending of labor or “creation” is not an independent source or property rights. To create something is just rearranging or changing property that you already own; it is not creating new ownership rights or new property. So the whole natural rights justification for IP just vanishes. I discuss some related issues in my post Locke, Smith, Marx and the Labor Theory of Value, where I suggest that Locke’s emphasis on ownership of labor leads to the erroneous conclusion that intellectual property is justified.

This way of looking at property rights is of course how Austro-libertarians such as Rothbard and Hoppe view it, but it is also natural to the Roman law tradition. See, for example, the comments of Professor A.N. Yiannopoulos, a world renowned civil law scholar, regarding the nature of ownership and the relationship to economic scarcity:

Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing.

[See n. 4 of my What Libertarianism Is, quoting A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 (first emphasis in original; remaining emphasis added). See also Louisiana Civil Code, Art. 477 ("Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law").]

So after having been steeped in the civilian conception of property and scarcity, it is no wonder that the Austro-libertarian perspective seemed so natural to me. I am now beginning to wonder if my views on IP as most fully expressed in my 2001 article Against Intellectual Property resulted in part from the intersection of civil law property and ownership concepts and various insights of Mises, Rothbard, and Hoppe regarding scarcity and property rights.

My interpretation of Locke’s labor/creation based homesteading theory and its potential to lead to support for artificial IP rights is bolstered by an article Jeff Tucker came across recently, Robert M. Hurt and Robert M. Schuchman’s 1966 American Economic Review article The Economic Rationale for Copyright. In this piece, the authors note:

We may group the various justifications offered in favor of copyrights under two headings: (1) those which are based on the rights of the creator of the protected object or on the obligation of society toward him and (2) those which are based on the promotion of the general well-being of society. Under the first classification we should discuss two important theories in some detail and one more in passing: (1) the natural property right of a person to the fruits of his creation, (2) the moral right to have his creation protected as an extension of his personality, and (3) his right to a reward for his contribution to society.

1. The claim that an author has an inherent property right in his writings, which right is merely recognized by the statute, has such wide acceptance that it seems at times to brook no opposition. Jurists, political philosophers, and economists have developed two divergent views of property which illustrate the conflict among supporters of the copyright system.

First, property rights can be viewed as a device whereby scarce resources will be subject to exclusive control rather than exploitation at will by all comers, with the result that they will be used in an economically efficient manner. This theory was latent in the Roman law development of the rights of property, with its emphasis on dominium, or exclusive control over tangible objects. The origin of the claim to a property right–working of the soil, gathering of the objects, gratuitous grant by the government, plunder, or theft–is not necessarily relevant; rather it is important that someone has control.

Second, property rights can be viewed as the right of each person to the exclusive control of the products of his creation. If a man brings a given commodity into existence, one who appropriates this commodity without the consent of the creator is guilty of theft, a proposition which becomes self-evident with the use of right reason. This later theory of property has its roots in scholastic jurisprudence and finds its most famous expression in John Locke’s Second Treatise. It is inextricably tangled with the first theory in Blackstone and finds its strongest refuge today in justifications for the expansion of patents and copyrights.

So. Not only is Locke wrong in his proviso (see my post Down with the Lockean Proviso); he is also wrong in his reliance on labor and creation as sources of property rights–and this erroneous view contributes to the confused justifications that are often given for IP. Roman law is superior conceptually and substantively, and more compatible with libertarianism and Austrianism. I named my most recent poodle Louie von Mises. The next one will be Justinian.